TMI Blog2014 (3) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... a claim for refund. If at all a refund claim is required, the first letter informing the department of the mistake and requesting for permission to rectify the same should be taken as claim for the purpose of Section 11B. Alternatively, the contention of the appellant that the amount paid by mistake is not duty merits consideration. In fact, duty paid on the goods is indicated in the invoices. The amount erroneously paid in excess does not find mention in any invoices. In that sense, the amount paid should be considered as deposit and not duty - Following decision of BDH Industries Ltd. Vs. Commissioner of Central Excise (Appeals), Mumbai-I [2008 (7) TMI 78 - CESTAT MUMBAI] - Decided in favour of assessee. - Appeal No. : E/1822/2010-SM - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 70 (Tri. - Ahmd.)], S. Subrahmanyan Co. Vs. Commissioner of Central Excise, Vadodara [2011 (268) E.L.T. 497 (Tri. - Ahmd.)] which has been upheld by the Hon ble High Court of Gujarat by a judgment dt. 27.01.2012 and submits that the issue is no more Res-integra. 5. Ld. Departmental Representative on the other hand could draw my attention the judgment of Larger Bench of the Tribunal in the case of BDH Industries Ltd. Vs. Commissioner of Central Excise (Appeals), Mumbai-I [2008 (229) E.L.T. 364 (Tri. - LB)]. It is his submission that the issue involved in the case in hand was the issue before the Larger Bench and the Larger Bench has specifically held that even if the duty is paid twice over there is no provision to take suo moto cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited (supra) would be applicable in this case, as the identical facts were decided by the Larger Bench but on deeper consideration, I find that the reference to Larger Bench was made by me in the case of BDH Industries Limited, sitting singly, only on the ground that the appellant had taken suo motu credit of excess paid duty by double debit in PLA and the and credit was taken in RG 23A Part-II; noticing contrary decisions of Tribunal in the case of Motorola India Pvt. Limited and Comfit Sanitary Napkins (I) Pvt. Limited. I find that the law as has been decided by the Larger Bench seems to be incorrect on the face of the fact that the judgment of the Tribunal in Motorola India Pvt. Limited was carried in appeal before the Hon ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices. In that sense, the amount paid should be considered as deposit and not duty. Therefore, the question of time bar does not arise. In any case, the denial of the refund claim for the excess amount paid on account of clerical error is unjust. In the peculiar facts and circumstances of the case, we allow the appeal with consequential relief. 11. Aggrieved by such an order of the Division Bench of the Tribunal, Revenue preferred appeal before the Hon ble High Court of Karnataka, wherein their Lordships have passed the following order :- [Judgment]. - Revenue is before us aggrieved by the order dated 1-9-2005 passed in appeal No. E/83/2004 by the Customs Excise Service Tax Appellate Tribunal, Bangalore. 2. The respondent-ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable on the facts of this case. In the light of the case laws, we are of the view that the order of the Tribunal does not require any interference by us. No question of law arises. The order is based on the law laid down by the Apex Court. 8. After recording above reproduced findings, the bench held that in a situation like the issue in hand, ratio of BDH Industries Ltd. case will not apply. 9. I also find that the judgment of the Tribunal in the case of S. Subrahmanyan Co. (supra) as cited by the Ld. Counsel is directly on the point. I find that in the case of S. Subrahmanyan Co., the issue was duty paid mistakenly twice by debits in Cenvat Account and arithmetical error the nature was corrected by the assessee therein on it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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